[2009] KEHC 487 (KLR)
The court found that although the appellant pleaded guilty to grievous harm, the medical evidence only supported a finding of harm, not grievous harm. The correct charge should have been assault causing actual bodily harm under Section 251 of the Penal Code, which carries a maximum sentence of five years. The court...
Source-derived case information.
- Citation
- [2009] KEHC 487 (KLR)
- Parties
- Appellant: Wilson Rotich; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 212 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction for grievous harm quashed; conviction for assault causing actual bodily harm substituted; sentence reduced to three years imprisonment from date of original conviction
- Legal Topics
- Plea of Guilty, Grievous Harm, Assault Causing Actual Bodily Harm, Sentencing, Conviction Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Rotich
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for grievous harm was proper based on the facts and medical evidence.
- 2 Whether the sentence of ten years imprisonment was appropriate in the circumstances.
Ratio Decidendi
The court found that although the appellant pleaded guilty to grievous harm, the medical evidence only supported a finding of harm, not grievous harm. The correct charge should have been assault causing actual bodily harm under Section 251 of the Penal Code, which carries a maximum sentence of five years. The court quashed the conviction for grievous harm and set aside the ten-year sentence, substituting a conviction for assault causing actual bodily harm and imposing a sentence of three years imprisonment from the date of original conviction.
Court Disposition
conviction for grievous harm quashed; conviction for assault causing actual bodily harm substituted; sentence reduced to three years imprisonment from date of original conviction
Orders
- The conviction for grievous harm is quashed.
- The sentence of ten years imprisonment is set aside.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 212 of 2007
(From original conviction and sentence in Criminal Case No.4021 of 2007 of the Chief Magistrate’s court at Nakuru – W. KAGENDO, SRM)
WILSON ROTICH………………………………..APPELLANT
VERSUS
REPUBLIC…………………………………...…RESPONDENT
JUDGMENT
WILSON ROTICH, the appellant was upon his own plea of guilty to a charge of grievous harm contrary to Section 234 of the Penal Code convicted and sentenced to ten years imprisonment. He has appealed against that conviction and sentence.
At the hearing of his appeal he said he is sorry and prayed for lenience. Mr. Njogu for the state left the matter of sentence to me.
I have considered the appellant’s plea. The appellant found the complainant, a child of about five years old playing with his younger brother. He lifted the complainant and remarking that he was feather weight he let him drop to the ground thereby fracturing his left shoulder. He left the poor child writhing in pain and comfortably walked away. The boy was taken to Solai Health Centre where he was treated and discharged.
There is no doubt that that was a beastly act which does not deserve any mercy being extended to the appellant. From the facts stated from the prosecutor, however, I note that Dr. Kamau assessed the degree of injury to the complainant as harm. The appellant should therefore have been charged with the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code which carries a maximum sentence of 5 years instead of grievous harm which carries upto a maximum of life imprisonment. Taking this into account I quash the appellant’s conviction on the charge of grievous harm and set aside the sentence of ten years imprisonment. I substitute therefore a conviction of assault causing actual bodily harm contrary to Section 251 of the Penal Code and sentence him to three years imprisonment to run from the date of his conviction which is 11th October, 2007.
DATED and delivered this 5th day of November, 2009.
D. K. MARAGA
JUDGE.